What will Anthony Kennedy do on gay marriage?

The law, lawyers, and the court.
Aug. 13 2010 7:20 PM

What Will Anthony Kennedy Do on Gay Marriage?

It's the question driving the entire Prop 8 train.

Anthony Kennedy. Click image to expand.
Justice Anthony M. Kennedy 

When Judge Vaughn Walker decided Thursday to restart gay marriage in California as of Aug. 18, he turned what had been a tactical headache for supporters of Proposition 8, the voter referendum that banned same-sex marriage two years ago, into a strategic aneurysm. Last week, the only issue they had to worry about was the lousy record they had produced for the appeals courts. They now have much bigger worries after Judge Walker's suggestion that the only group that may be willing to appeal his decision striking down Prop 8—not the state, but ProtectMarriage.com, which defended Prop 8 at trial—may lack standing to do so. As Walker put it, "Proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction."Emily Bazelon explains why the standing issue may derail the whole case. And if that happens, nobody will be happier than Justice Anthony Kennedy.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Maybe the possibility that the case will blow up over standing will also prove a blessing in disguise for the supporters of Prop 8. Last week, it seemed that the proponents of Prop 8 couldn't possibly fail to appeal even if they secretly wanted to; the political pressure to fight the Walker decision all the way to the highest court in the land would be too high. But on Thursday, audio circulated of fundamentalist activist David Barton speaking on Today's Issues on American Family Radio. As Barton put it, "right now the damage is limited to California only, but if California appeals this to the U.S. Supreme Court, the U.S. Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames" (presumably the states that have voted to reject gay marriage). Barton then continued: "There's an effort underway to say 'California, please don't appeal this. I mean, if you appeal this, it's bad for you guys, but live with it, but don't cause the rest of us to have to go down your path.' " Maybe this question over standing offers ProtectMarriage.com an escape hatch: a way to lose graciously and try to present a stronger case the next time.

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Barton's trepidation over Kennedy has become contagious on the right. Last week John Eastman, a conservative law professor who supports Prop 8, told the Los Angeles Times that Walker's analysis would probably persuade Kennedy when the case came before the high court. James Taranto, writing last week in the Wall Street Journal, similarly predicted that "[w]hen the Supreme Court takes up Perry v. Schwarzenegger—perhaps under the name Brown v. Perry or Whitman v. Perry—the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage." And perhaps the gay-marriage opponent most certain of Kennedy's vote is his colleague, Antonin Scalia. Dissenting from Kennedy's opinion in Lawrence v. Texas, the 2003 case striking down the state sodomy law, Scalia wrote that Kennedy's opinion "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. …"

And yet the left is almost equally certain that Kennedy will vote not to create a constitutional right to gay marriage. Scott Lemieux wrote at the American Prospect that Kennedy's strong gay rights votes in both Lawrence v. Texas and Romer v. Evans did not predict a yes vote in Perry because of both "the breadth of the case and the level of public opposition." (Jan Crawford similarly told CBS News that even though Kennedy is a "human jump ball" in this case, "this is something that Anthony Kennedy doesn't do. He's a very cautious justice. He doesn't like to get ahead.") Andrew Sullivan has collected some representative samplings of others who likewise don't believe for an instant that Kennedy is seriously in play in this case.

In other words, Kennedy himself has become the Rorschach test, with both sides importing their worst fears onto their assessment of his future vote. Still, it's the only question anyone's asking. Even Yahoo Answers wants desperately to know: What would Kennedy do? (Best answer: They dunno.) It's the question everyone wants answered, and the answer that usually says more about us than it does Kennedy.

For a bit of deeper insight, I turned to a 2004 paper called "The Gay Rights Jurisprudence of Anthony Kennedy," by Artemus Ward, a professor of political science at Northern Illinois University. It's useful to recall that Kennedy's rulings on gay rights extends beyond Lawrence and Romer (the 1996 case that struck down an amendment to the Colorado Constitution that nullified ordinances barring discrimination against homosexuals). Kennedy's been thinking about gay rights cases for decades. While he was on the 9th Circuit Court of Appeals, Kennedy was the deciding vote in Beller v. Middendorf, a dispute over the Navy's decision to discharge three men for homosexual acts. Writing for a 2-1 majority in 1984, Kennedy found that "[d]espite the evidence that attitudes toward homosexual conduct have changed among some groups in society, the Navy could conclude that a substantial number of naval personnel have feelings regarding homosexuality, based upon moral precepts recognized by many in our society as legitimate, which would create tensions and hostilities, and that these feelings might undermine the ability of a homosexual to command the respect necessary to perform supervisory duties." Ward is quick to point out that even though he voted against them in Beller, Kennedy was respectful and thoughtful about the question of gay rights, citing Laurence Tribe and declining to use a mere rational basis test.

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